Posted on June 27, 2019 by Katie Mortimer and Megan Hawley 2

Update: Meaning of “Land” in s57 of the Heritage Act

The Court of Appeal has clarified what the word ‘land‘ means in the context of s57(1)(e) of the Heritage Act 1977 (Act) which requires approval to be obtained before development is carried out ‘in relation to the land’ on which a State heritage item or item subject to an Interim Heritage Order (IHO) is situated.

The case was an appeal from a Land and Environment Court (LEC) decision which we blogged about here. The LEC had determined that ‘land’ in that context meant land identified as having a nexus to the relevant item.

Section 57(1)(e)

Section 57(1)(e) relevantly states:

“(1)  When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3:

…

(e)  carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct,”

Findings on the meaning of ‘land’

The Court of Appeal concluded that the word ‘land‘ where first used in s57(1)(e) (in bold in the above quote) means the physical part of the land on which the State heritage item or item to which the IHO applies, stands. It does not mean the whole cadastral lot on which the item is located, nor does it mean the land with a relevant nexus to the heritage item, as the LEC had held.

All judges in the Court of Appeal disagreed with the LEC’s construction. They held that the meaning of the word ‘land‘ cannot be determined by evaluative assessment in the circumstances of individual cases. Given s57(1)(e) is determinative of rights, obligations and potential criminal liability under the Act, such ambiguity would undermine the efficacy of the Act.

Leeming JA stated that the word ‘land’ is highly contextual, and does not bear the same meaning throughout the Act. Significantly, His Honour found the Act sometimes referred to property rights in which case ‘land‘ was a reference to cadastral parcels, but sometimes referred to activities taking place in the physical landscape. He considered s57(1)(e) was concerned with the latter. Given the definition of ‘development’ in the Act, Leeming JA found that s57(1)(e) is directed to the part of the land on which the relevant physical structure was erected. In this case, that meant the part of the lot on which the relevant building had been built.

His Honour considered this best accorded with the Act making provision for IHOs and listings to apply to the ‘site’ or ‘curtilage’ of a building (see ss27, 32 and 57). For ‘land’ to mean the whole of a cadastral lot would conflict with these sections, when the Act makes precise provision for protecting specified parts of land.

Having regard to other sections of the Act, Emmett AJA agreed the proscription in s57(1)(e) is concerned with the specific heritage item, and should not refer to anything beyond the land on which the specific item is actually situated.

Whilst the decision clarifies the meaning of the word ‘land‘ in s57(1)(e), it is again a reminder that the word ‘land‘ will mean different things in different contexts, including within the same piece of legislation, and the Court will have regard to the scope and purpose of relevant statutory provisions when considering the meaning of the word.

The Court of Appeal’s decision can be read here: Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141.

Should you wish to discuss the issues raised in this post, please contact Megan Hawley on 8235 9703 or Katie Mortimer on 8235 9716.